Opinion
No. 05-02-01089-CR
Opinion issued January 22, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 1 Dallas County, Texas, Trial Court Cause No. F02-00119-Qh. Affirmed.
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
OPINION
Paul Lafayette Sanders appeals his injury to a child conviction. Appellant entered a plea of no contest, and the trial court found appellant guilty and sentenced him to sixty years' confinement. In three issues, appellant argues (1) the trial court erred in permitting him to testify during the punishment phase of trial, (2) his plea was not voluntary because he believed he could get probation, and (3) he received ineffective assistance of counsel. We affirm the trial court's judgment. In the early morning of January 18, 2001, appellant called 911 and requested an ambulance. Appellant told the dispatcher his baby had stopped breathing and might have fallen in the bath tub. Thomas Courson, a paramedic with the Dallas fire department, was dispatched to appellant's residence and found appellant bent over his three-year-old daughter and trying to resuscitate her. Courson asked what had happened, and appellant said his daughter had been in the bathtub. Appellant said he left for a minute and found her floating on her back in the water when he returned. Courson determined that the child was not breathing and not responsive, and two other paramedics took over treatment of the child. She was later pronounced dead. Courson then asked appellant to show him the bathtub. There was no water in the bathtub and no droplets of water or evidence that water had been in the tub. Appellant indicated the tub had had eight to twelve inches of water in it, but he had drained the water when he took his daughter out of the tub. An ambulance arrived to take the child away, and Courson noticed abrasions on the child's face. However, the child was not wet. Later examination showed that the child had been beaten severely. Appellant eventually admitted in a written statement that he had hit the child five or six times with a chain belt until it hurt his hand Appellant also admitted he accidentally pushed the child when a cat scared him, causing the child to hit her head on a table. Appellant saw no blood, so he began to spank the child for not "minding" him. Appellant admitted to further spanking the child with a belt until his hand hurt again. At trial, Jill Urban, a medical examiner, testified she examined the child's body and discovered multiple blunt-force injuries. Urban further testified that a belt buckle recovered from the crime scene perfectly matched contusions on the child's face. The trial court found appellant guilty, sentenced him to sixty years' confinement, and this appeal followed. In his first issue, appellant argues the trial court erred in allowing him to testify during the punishment phase of trial. Specifically, appellant argues the trial court should have inquired into whether his statement was coerced and should have admonished him of the consequences of his waiver of his right not to testify. A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him. Harrison v. United States, 392 U.S. 219, 222 (1968); Bell v. State, 620 S.W.2d 116, 124 (Tex.Crim.App. 1981) (op. on reh'g) (defendant choosing to waive privilege against self-incrimination by voluntarily taking witness stand generally subject to same rules as any other witness); Ramirez v. State, 74 S.W.3d 152, 155 (Tex. App.-Amarillo 2002, pet. ref'd) (when criminal defendant voluntarily takes stand to testify, he waives privilege against self-incrimination). Here, appellant and his counsel conferred before appellant testified. When asked by his counsel if he wanted to testify, appellant answered, "Not really." In response to his counsel's question, appellant confirmed that he "had been having a lot of difficulty with this." Nevertheless, there is nothing in the record to show that it was not appellant's choice to testify at punishment, regardless of the "difficulty" appellant had, presumably with the tragic facts of the case. Further, the record contains nearly thirteen pages of appellant's testimony on direct examination in which he stated he attempted suicide shortly after his daughter's death, described his medical treatment, testified concerning his educational and employment background, and gave an account of the events leading to the death of his daughter. After reviewing the record, we conclude appellant freely chose to testify and thereby waived his privilege against self-incrimination. See Harrison, 392 U.S. at 222; Bell, 620 S.W.2d at 124; Ramirez, 74 S.W.3d at 155. We overrule appellant's first issue. In his second issue, appellant argues his plea of no contest was involuntary because he believed he was eligible for probation. As appellant points out in his brief, however, in a bench trial, if a court does not make a deadly weapon finding, even though alleged in the indictment, community supervision is available. See Hooks v. State, 860 S.W.2d 110, 112-14 (Tex.Crim. App. 1993). Therefore, at the time he entered his open plea of no contest, it appears appellant could have received any sentence within the statutory range of punishment. Accordingly, we cannot conclude appellant's plea was involuntary. See Hooks, 860 S.W.2d at 112-14. We overrule appellant's second issue. In his third issue, appellant complains he received ineffective assistance of counsel because his trial counsel did not inform him that he was ineligible for probation. Because we have already concluded any sentence within the statutory range of punishment was available to appellant at the time of his open plea, we cannot conclude appellant's counsel was ineffective. See id; Strickland v. Washington, 466 U.S. 668, 689 (1984). In addition, the record is silent as to what trial strategy might have led trial counsel to refrain from arguing that the means used to injure appellant's daughter, as used in this case, could not be construed as deadly weapons. See Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). We overrule appellant's third issue. We affirm the trial court's judgment.